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Zwicker on behalf of Discover Bank sued me for approx 11k in the county of riverside, superior court of california
They only attached one credit card statement and no contract or application.
I foolishly said i had an open account with them but denied all other actions.
I served them discovery to them on 7/23/19 (admissions, interrogatories both special and formal) and documents
Today is 8/12/19 and was served with motion for summary judgement with all credit card statements and a declaration from someone that claims they work for discover in New Albany, Ohio.
Is there any way to fight this?
they have never sent a contract or application
their witness/the person who signed the declaration is in ohio. I thought in california, their witnesses have to be within 150 miles of jurisdiction.
"Discover Bank" sued me
statements are for Discover It Card
exhibit A was discover cardmember agreement
exhibit B was all the statements since origination of account

I have edited this post to include this introductory statement because there's a lot here and I feel it's important to read through this saga knowing ahead of time how it will end. You will see how much work and attention to detail I gave this case but it was not enough to come out on top. I lost in Justice Court when the Plaintiff filed a Motion for Summary Judgment (MSJ) and was unable to get the appellate court to reverse the lower court's ruling. Here is the thread for my appeal: http://www.creditinfocenter.com/community/topic/323330-arizona-lost-to-cavalry-on-msj-also-lost-on-appeal/
I have learned several things along the way. The most significant one is that in most cases, there is no "absolute" way a Justice Court judge has to rule on evidence. He can rule one way on admitting certain evidence and another judge can rule the exact opposite way. If both cases went to appeal, the appellate court can rule that neither judge committed error. To wit, winning in Arizona is mostly luck of the draw and as time marches on, good luck seems to be evermore diminishing . The reason for this is because appellate courts in AZ (and most other places) review the admission of evidence for an "abuse of discretion". This means they are not looking for a specific outcome with the admission of evidence (admitted or rejected), but instead are looking for something to indicate the judge had a basis for his decision. Furthermore, if there is nothing on the record that shows the judge had no basis for his ruling, the appellate courts usually won't assume facts that aren't there. This means the evidence itself must be lacking some fundamental element in order to have the appellate court reverse the Justice Court decision.
The next important thing I learned is that there is a case here in Arizona named Parker that appeals courts have been applying to JDB lawsuits. Parker says that a witness can testify about business records even if that witness did not create the records or has no knowledge of the person that created them or the manner in which they were created. The way this is being applied to JDB lawsuits is an employee of a JDB can testify about your credit card statements even though the JDB's employee has never seen the records before reviewing them in preparation of giving her testimony. The only criteria for giving this testimony is that the testimony must state 1.) the witness is a custodian of the JDBs records; 2.) the witness has reviewed the records being introduced (and specifically identifies them); 3.) the records were incorporated into the JDBs own records; and 4.) the JDB relied on the records in its normal course of business. If all 4 of those things are present in the witness testimony (or affidavit on MSJ), the Justice Court is free to admit the evidence and the appellate court won't reverse that decision on objections of hearsay or lack of foundation. This doesn't mean the evidence admission cannot be reversed based on some fundamental defect with the evidence itself, however. Examples of this would be a date that doesn't match up with other dates or dollar amounts among the records are discrepant with no rational explanation. It's YOUR job to raise these questions with the lower court. If you don't address them with the lower court, the appellate court won't consider them on appeal.
The last important thing I learned is that JDBs are now entering into 'capped legal fee' agreements with their attorneys. This means that the lawyer agrees to represent the JDB for a modest fee if the defendant does not contest the lawsuit (including defaults) and then a maximum amount the JDB will pay on contested lawsuits. In my own case the cap was set at $1,500. The lawyer submitted an affidavit that they spent over $11,000 in time, but stated that due to 'contractual arrangements' they could only charge $1,500 of that to Cavalry. The significance of this is that a few years ago, if a defendant contested the lawsuit and started running up the JDB's legal tab, the JDB would be more inclined to drop the case and walk away. Now, when they know they will spend no more than $1,500, once they reach that $1,500 limit (right around the 2-3 month mark of the lawsuit when discovery takes place), they have no incentive to back down. It will cost the JDB the same to litigate the case all the way to trial and beyond (I appealed and Cavalry never paid more than $1,500) as it would to settle the case once the cap is reached.
The cautionary tale here is that JDBs (at least here in AZ) have figured out exactly what they need to do in order to keep a Justice Court decision in their favor from getting reversed.
My philosophy is to do whatever you can to keep the Arizona Court System from deciding your fate on a debt collection lawsuit. At this time, the most effective way to do that is via arbitration. There is an arbitration forum here on CIC. I suggest asking for advice there. Also, here is an example of how arbitration was used in Arizona to beat a JDB: http://www.creditinfocenter.com/community/topic/326349-retired-and-being-sued-by-unifund/
Here is a Justice Court Appeals Ruling discussing the use of arbitration in debt collection cases. http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf
Update 12-21-2015: The CFPB smacked Midland and Portfolio Financial Services (PFS) pretty hard in a consent order earlier this year. You can read the details here:
http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/
The reason this is significant is some of the Justice Courts here have reconsidered how they are treating Midland and PFS when consumers contest the lawsuits they bring. This is from a Justice Court case that was reversed on appeal:
http://www.courtminutes.maricopa.gov/docs/Lower%20Court/102015/m7064645.pdf
There have been a couple reports of the Justice Courts taking it upon themselves to reject the evidence, even when the defendant doesn't raise the issues of the CFPB findings. Of course, if you are sued by Midland or PFS, certainly address the CFPB findings when objecting to summary judgment or at trial when Midland/PFS tries to introduce their evidence.
Update 04-06-2016: It seems the Justice Court appellate court has had a change of heart:
http://courtminutes.maricopa.gov/docs/Lower%20Court/022016/m7204120.pdf
Ok, on to my story.

Introduction:
Sued by JH Debt Portfolio Equities, LLC (JDB2), debt purchased from Oliphant Financial, LLC (JDB1) whom purchased from OC (Capital One)
Account and Debt are unknown to me (Pro Se Defendant)
Responded to Petition with General Denial and Special Exceptions, requested Disclosures from Plaintiff (required multiple additional requests to comply to get documents)
Responded to Plaintiff's Request for Admission with Denials.
Current Delimma:
Plaintiff (JDB2) filed Motion for Summary Judgment. In the motion the Plaintiff specifically refers to Bussiness Record Affidavit and an Affidavit for Attorney Fees. The motion fails to enumerate the facts at issues and which pages of attached evidence address the facts, it does have documents attached as evidence, all of which fail to show a direct link between the Plaintiff and account. (Attached)
How do I specify issues of fact and objections if the motion is stated in a general manner? Strategically, if I go through all of the pleadings and motion and identify related evidence + weaknesses I do myself a disservice. I would be stating the grounds for their case, giving them all the info they need to strengthen their case, and it providing them with information regarding my strategy, knowledge base, and abilities.
Can someone please help me with how best to address this issue? I know that I can request revisions by specifying things that are vague or ambiguous, but that my request is too general it will be denied, and am again unsure because their entire motion is too vague and ambiguous. I welcome your related experiences and advice. Thank you in advance.
JDB-MSJ.pdf

Ok! Just came back from hearing on my Motion to Compel Private /Contractual Arbitration was DENIED! After the attorney barked for 15 minutes saying I could not claim anything from a contract a denied having, the judge agreed and said she could not grant me my motion because I denied on my affidavit having an account/contract with Portfolio Recovery Associates or its "assignor" Synchrony Bank (old navy credit card). What is next? Is it to late to file MSJ to get the case dismissed? Here is some background: Being sued by Portfolio Recovery Associates (Synchrony Bank - Old Navy Credit Card) for $2.589, last paid on April 2013 (Michigan SOL is 6 years) 05/11/2015 - Summons and Complaint Filed was served end of June 2015 07/12/2015 - I answered my complaint denying ever having such account 08/28/2015 - Ordered Mediation (didn't settle as the JDB offered to take off about $300 from the amount allegedly owned) 09/28/2015 - Plaintiff filed Motion for Summary Disposition 10/05/2015 - Defendants Brief in Opposition to Plaintiff Motion for Summary Disposition filed 11/02/2015 - Hearing where judge gave me 48 hours to file Affidavit denying Plaintiff claims 11/02/2015 - Defendant filed Affidavit Denying Plaintiff's Claim 11/05/2015 - Plaintiff Motion for Summary Disposition DENIED 11/06/2015 - Defendant's Motion to Compel Private/Contractual Arbitration filed 11/30/2015 - Defendant's Motion to Compel Private / Contractual Arbitration DENIED

For anyone not familiar with my case, you can read up on it here: http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona-lost-on-plaintiffs-msj/ The short version is Plaintiff filed an MSJ in August of 2013. The court denied that one. I filed a MSJ in February 2014. In response, Plaintiff filed a cross-MSJ with the same arguments from their original MSJ (that was denied) but the cross-MSJ was a much more brief version thank the original MSJ. The court granted their cross-MSJ. So that is where I am. I do not have a final order of judgment yet, but I will be filing the required notice of appeal once I get the final order of judgment. I don't know what the justice court appeal fees are yet, but I don't think I can afford them. There was no trial, and therefore no audio recording to prepare, so maybe the cost from justice court will be lower. It looks like the fee once the case gets to superior court is going to be $300. UGH! No way can I come up with that. There is also a "cost bond" to cover Plaintiff's legal costs. I have no idea how that is calculated, but I'm sure I can't afford that either. The good news is I can request a waiver or deferral of all of the fees. Just when I was getting my hopes up that Plaintiff would be dismissing, it looks like we're just getting started. This is unreal..... Edit: I used info from a variety of sources when I appealed. The following proved to be the most informative and helpful. The first one is a walk-thru that explains timelines and what all needs to be filed and where. The second one is a packet that has forms and fills in some info gaps from the walk-thru. The third one is the general "right to appeal" form the court gives you when you lose. It's sort of a shortened version of what's required to get the ball rolling. I don't know how often these are updated, but the fee info is not right on at least one of these so plan the fees being 10-15% more than what's stated in these documents. https://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdf http://justicecourts.maricopa.gov/HowTo/CV_Appeal_packet.pdf http://justicecourts.maricopa.gov/CaseTypes/CVForDetAppealInfo.pdf Notice: I appealed a Justice Court case to the Superior Court. If your case started in Superior Court (debt >$10,000) there is a different process for appealing. You can find the info here: http://www.azcourts.gov/Portals/34/Guides/ProSeGuideCOMPLETE(Amended12-12).pdf

I just received a Motion for Summary Judgement for Audit and Adjustment Company in King County here in Washington State. The MSJ is being filed under Rule 56. It looks like it was filed 9/19 and I just received it a couple of days ago in the mail. The date of the hearing is this Tuesday, 10/7. I was not served, and there is no complaint. The plaintiff was kind enough to send me a copy of rule 56. They have also attached some copies of what appear to be past statements and a declaration of assignor in support of plaintiff's MSJ. That was signed on 12/30/13 and looks like it was signed by someone at the OC. There's also another assignment attached that looks more like a letter signed on 2/5/13, but I don't know who signed it as there signature is unreadable, and no other fields are printed. I haven't handled this type of thing before. I'm using to filing an answer, etc. So I'm a little stumped, and frustrated by zero lack of time to respond. I feel like I need to turn something in tomorrow to be timely. Can I respond to the MSJ and object to it because of lack of time for discovery? I'm not sure what other defenses or objections are appropriate. Any feedback you have is appreciated.

I would like to solicit opinions/answers for a few questions I have about the form and substance an opposition for summary judgment should take and, if possible, get a pointer to the rules of court that your opinion is based on. If your opinion is based on practical experience, that's fine. This is Maricopa County Superior Court The action is civil First; are the Memorandum, statement of facts, and affidavit all one long document (using sequential page numbering) with headers (like this) MEMORANDUM OF POINTS AND AUTHORITIES 1 blah blah 2 More blah STATEMENT OF FACTS 1 blah 2 blah Or are they separate documents, each with a complete case heading (parties, court, judge, title, etc.) Second question; In my statement of facts do I need to follow their paragraphs? For example: Theirs might read, 1 The defendant is a llama that's down. 2 The defendant spit on me. I want to deny "2" but I'm ok with "1" so do/can I, 1 Defendant denies Plaintiffs Facts Paragraph 1; I never spit on the plaintiff 2 Defendant was out of town on the date in question (See Exhibit "A") Or do I have to, 1 Yup, I'm a LLamaDown 2. Did not! Third; If the plaintiff has included an exhibit and I want to use it in both my statement of facts and my memorandum how do/can I? Do I make a copy of their copy and include it? Do I reference it by name?

Hello All, Hoping I can find some info that I couldn't find in a search on the forums. Here's my situation: Bank of America/FIA Card Services Rec'd Summons Replied and went into Discovery portion. Had a deposition Answered Interogetories / Sent them as well They never answered - it's been over 6 months Yesterday rec'd Motion for Summary Judgement. My question is (as I've been saving some money in the meantime) can I try to negotiate to settle at this time before the judgment AND if so do I have to request negotiation through the court or just call up the lawyer? OR, should I answer the msj and wait to settle while in trial (even though no date set on trial at all) Thank you so much.

Hi, Rookie here.... this site is amazing, I've learned so much just since last night... unfortunately, after the fact... I am being sued by an attorney representing FIA Card Services for an unpaid BOA credit card charged off as of 11/09. After two court appearances, in which I was the only one in front of the judge, the attorney filed a Motion for Summary Judgement. I started digging through old paperwork, and found three credit agency demands for payment on this account. The 3rd, was a very intimidating and explicitly demanding letter from the attorney now suing me. Her letter said "acting as a debt collector". "Demand is hereby made upon you for the payment in the amount of $4xxx.xx (PRINCIPAL). Your payment should be made by certified check, cashiers check, or money order paid to the order of: HER, at HER address." It occurred to me, that BOA had charged off the acct, and sold it to JDB pool. The attorney (the 3rd collection agency) tried to get it from me, and failing that, filed suit naming FIA as the plaintiff. She submitted an AFFIDAVIT from an FIA custodian of record. To make a long story short, I filed a Motion to Oppose Summarry Judgement, and attached an exparte motion to Strike the Affidavit, and Motion to Dismiss. I completely misunderstood the court clerk, and sent the lawyer the attached motions,(so all 3 can be heard in court at once on 6/27) a day late of the 3 day order. Court clerk said she'll probably know anyway from online court calendar, but I'm thinking it will get continued for my late mailing. The main premise of my motion to oppose and dismiss is alleging that the real plaintiff is the attorney, and that FIA is a third party to the action, but has assisted the atty. But my main question, after finding this site, is....... what can I expect in court on 6/27? The attorney has never been in court. Over This FIA has an inquiry on my credit report, BOA shows it 'charged off'. The attorney sent a demand letter for the amount to be paid to HER. Next thing I get is court summons with her representing FIA. There is so much distrust, and I know it makes no difference, but the banks got bailed out, I didn't. I feel like this attorney rolls the dice and sends out demands to a hundred people, knowing 90% wont show up in court. I watched 8 people before me, (who werent there) get default judgements against them. Then its my turn, and for the 3rd time, the attorney isn't there. So, I filed the Motion to Oppose the Summary Judgement, etc. Do you think I made the wrong move?

I have been following these board postings since I recved Summons in October. I used some of the forms..Request for Debt Validation Request to strike Affidavit of Debt and how to request dismissal of Midland's MSJ. On 2/14/13 I showed up one hour early to my hearing..I thought I was pretty prepared...I read tons of things on internet about how to fight JDB's and I had my notebook with my opening statement...first to strike affidavit...obvious it was a robosigned one...second there was no bill of sale from Equable to Midland even though in the Affidavit it stated Midland "acquired" account from Equable, Midland did not show the Chain of Title from original debtor WAMU/Chase to Equable then to Midland...this alone should have been a red flag to Judge as it gives Midland no reason to sue. As I was sitting outside the court room several people were filing in mostly poor and most of them were Midland Funding Lawsuits. The clerke directed them to speak with Attorney Jim Boscia of Boscia, Bowman and Vician a Lawfirm out of Merrilville IN. I am in Elkhart County Merrilville is 100 miles to the west...but I digress...the point I am trying to make is this Clerk called the Attorney by first name JIM and they were on friendly terms....my gut dropped to my feet....I am screwed. When it was time to go in...I gathered all my papers and went to sit down. In comes the scumbag JIM with his lap top followed by several misguided obviously scared and very unprepared defendants. In comes Judge Lewis, we all RISE and clerk calls 1st case. JIM goes to stand in front of Judge with laptop in hand...opens lap top...he smiles at clerk(she remarked earlier that if she keeps things in the order she has planned he owes her a BLIZZARD from DQ down the street..REALLY???) I knew then I was in trouble. Anyhow the first case is open and shut the defendant was Hispanic, required his grand daughter to interpret, he kept his head down obviously shamed by this event. No rebutal on their part. Judge awards judgement without looking up at defendant. Down goes the gavel and I begin to get real nervous. A couple more cases go by all of them open and shut...gavel down....instant MSJ awarded. My turn...I walk to the Judge and open my little book with my well detailed notes...the Judge reads the orginal summons, then my request for DV, then my request to Strike Affidavit of Debt and request for Dismissal. Judge has my well written request to Strike Affidavit....I said to himthat this Affivadavit was flimsy at best. He remarked why do you say that. I remarked b/c the said Affiant for one is not present in court ..he states she is not been subpoened I nod I know this youir Honor...but this Affivadavit is Hearsay b/c she states that I as defendant owe Midland 9923.74 . She also stated that Midland acquired this debt from Equable Ascent but did not show a bill of sale. I asked the Judge how can hearsay be used as evidence? How do I know that another debt buyer does not say they own the same debt and next month will ask me for the same 9k? He barely looked at me and said the request to strike is denied. I stood there shocked and I began to tear up a bit. I quoted a Federal Rule of Evidence 106 requires that I be shown all the documents related to bill of sale. Judge quickly stated Miss DeBartolo this is an Indiana Court. I replied Does the Federal Rule not apply to all states...he snarked No it does not. Then scumbag JIM proceeded to talk...all a bunch of marlarky if you ask me...about how no one likes debt buyers(NO kidding) and that Midland has had it's fair amount of lawsuits(I can see why they are crooks). He goes on to state that Affidavits are always going to be questioned as hearsay just because they are a persons best recollection of the facts as they are known or some babbling BS. By then I was looking like the rest of the poor souls that left the court room. It was OBVIOUS JUDGE was a Creditor FRIENDLY Judge and all us debtors are deadbeats looking for entitlements or what ever. Needles to say...I knew if I appealed...I would not win in this CONSERVATIVE ELKHART INDIANA Judicial system...so I agreed with scumbag JIM on a payment plan of 300/month. I spoke with my debt settlement company about it....they are going to suspend my payments to them and finish settling my other accounts with the capital i have acquired with them. Any suggestions on how to proceed or am I just screwed? Diane from Indiana

I'm reposting in this thread as things have changed and I hope to clarify for myself and others. All opinions are appreciated. Brief overview: 1. I'm in Ohio. 2. OC Fifth Third 2007-2008. 3. Debt $900. 4. Served by Asset July 2012. 5. Answered July 2012. 6. Mediation scheduled July 2012. 7. Filed MTC Arb August 2012. 8. Received discovery August 2012. 9. Mediation cancelled August 2012 on grounds that arb was elected. 10. MSJ filed by Plaintiff Janurary 2013 (included affidavit from an Asset "representative" with NO information not established in complaint. MSJ filed on the grounds that Defendant failed to respond to Discovery requests. Although the Plaintiff and the court received MTC arb prior to deadline. No hearing was set and no ruling was issued on MTC. It's my understanding that (in Ohio) the trial court cannot rule on underlying claim until there is a ruling on the MTC. It is also my understanding that this would be the grounds for an Objection to MSJ. In addition to this I have seen it suggested to argue subject matter jurisdiction as well as the issue of triable issues of material fact. Most, if not all, of the contributors here are very well versed in civil procedure parlance while others (me) are quite the opposite. I have been operating under the "C.A.S.E." method: Copy And Steal Everything That has worked great thus far. However, at this point, I am done slow dancing with Asset. They have produced no evidence. No bill of sale, no receipts, no contract, no nothing. I don't think they can even produce the full account number. They've re-dated my credit report and the affidavit they submitted is nothing more than hearsay. I want to hit them with anything and everything possible. I want the opposing council as well as the judge to know where I am coming from. I plan to object to MSJ using Cap One v. Collins as precedent, but I want MOAR! Can I file an affidavit to establish triable issues as well? I have no evidence either as I am unfamiliar with the alleged account. Breach of contract? FDCPA violations? Anything I can do to shut them down, I will do. This is where I need opinions most. Sorry for the length but I wanted to be as clear as possible. Any and all consideration is appreciated. Thanks

Hi all, I filed MTC, and elected arbitration following Lindas plan. I had a hearing (in the judges chambers) not in the court room. The judge read the credit card agreement, and nodded his head as he read out loud "if either parties elect arbitration it replaces the right to go to court". Sooo I am thinking I am doing quite well at this point. The attorney told the judge that he still elects to resolve the issue in court. After the hearing was completed the attorney stopped me in the hallway , and told me that my motion was denied, and he will be filling a motion for summary judgement. I checked the website a couple days after the hearing, and it says Result: "Taken under advisement", "Set pre tial." The pre trial is set for the end of January, but I just received in the mail the MSJ the attorney has filed. Wondering if I need to answer the plaintiffs MSJ, as my MTC has not been ruled on yet? Thanks in advance.